R. v. Ebanks (Leonard Antonio)

¶ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0075/2013 THE QUEEN v LEONARD ANTONIO EBANKS Appearances: Mr. Simon Rnssell Flint Q.C. with Ms. Elisabeth Lees for the Crown Before: Mr. Conrtenay Griffiths Q.C. instructed by Ms. Amelia Fosuhene of Stenning & Associates for the Defendant The Hon. Mr. Justice Charles Quin Q.C. Submissions heard: 14'h November 2014 RULING ON THE CROWN'S SPECIAL MEASURES APPLICATION

¶ [1] Following the opening of its case to the jury for the trial of the Defendant on an indictment of murder, on the afternoon of Friday the 14'h November 2014 the Crown applied for Special Measures to be implemented for the reception of the evidence of the witnesses Juliet Facey and Chet Ebanks. The application is that the evidence of Juliet Facey and Chet Ebanks with the witnesses being screened from the Defendant and the public gallery.

¶ [2] The application is made pursuant to sAI(B) and sAI(H) of the Evidence Law (2011 Revision). Ruling on the Crown's Special Measures Application. Ind. No. 75113. R v. Leonard Antonio Ebanks. Quin J. Date: 17.11.14 Page 1 0/15 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

¶ [3] Section 41(B) and s. 41(H) fall within Part ilIA of the Law entitled "Special Measures Directions in Cases of Vulnerable and Intimidated Witness - Witnesses eligible for assistance on grounds of fear or distress about testifying". SA1(8) reads: "41B. (1) (2) (3) (4) For the purposes of this Part a witness in criminal proceedings, other than the accused, is eligible for assistance by virtue of this subsection if the Court is satisfied that the quality of evidence by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In determining whether a witness falls within subsection (1) the court shall take into account, in particular - (aJ the nature and alleged circumstances of the offence to which the proceedings relate; (b) the age of the witness; (c) such of the following matters as appear to the court to be relevant, namely- (i) the social and cultural background and ethnic origins of the witness; (ii) the domestic and employment circumstances of the witness; and (iii) any religious beliefs or political opinions of the witness; and (d) any behaviour towards the witness on the part of- (i) the accused; (ii) members of the family or associates C!f the accused; or (iii) any other person who is likely to be an accused or a witness in the proceedings. In determining that question the court shall in addition consider any views expressed by the witness. Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence, or to that offence and any other offences, the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection." Ruling on the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. Quin J. Date: 17./1.14 Page 2 0[15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

¶ [4] Section 41(H) reads: "41R (1) (2) (3) (4) A special measures direction may provide for the wituess, while giving testimony or being sworn in court, to be prevented by means of a screen or other arrangement form seeing the accused The screen or other arrangement shall not prevent the wituess from being able to see, and to be seen by - (a) the magistrate or judge, or both, and the jury, if there is one; (b) legal representatives acting in the proceedings; and (c) any interpreter or other person appoiJ;lted in pursuance of the direction or otherwise to assist the wituess. Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(b) is to be regarded as satisfied in relation to those representatives if the wituess is able to at all material times to see and be seen by at least one of them. The provisions of this section shall not apply in relation to a wituess who is the subject of an order under the Criminal Evidence (Wituess Anonymity) Law 2010." Ruling on the Crown '8 Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. Quin J Dale: J 7.1 J .14 Page 3 of 15 1 THE ApPLTCATION IN RELATION TO JULIET FACEY 2

¶ [5] Leading counsel on behalf of the Prosecution Mr. Russell Flint Q.C. highlights the 3 fact that Ms. Juliet Facey ("Ms. Facey") made statements to the police on the 25tl' 4 April 2008, the 8th November 2011, the 23'd December 2013, the I" May 2014 and 5 the 5th May 2014 - all pertaining to the offence of which the Defendant is accused. 6 She provided a further statement on the 6th November 2014 stating that she had had a volatile on/off relationship with the defendant for a number of years. She knows he does not like her and she is very scared of him. She is nervous and scared of giving evidence in his presence. 10 Leading counsel acknowledges that Ms. Facey did give evidence in the trial of R v. 11 Chad Anglin without a screen, but this was because she had no history with Mr. 12 Anglin. Ms. Facey also states it will have a "terrible effect" on her if she saw this 13 Defendant, Leonard Ebanks, in court. 14

¶ [6] Leading counsel points out that, more recently, the witness Ms. Facey indicated that 15 she did not wish to give evidence at all as she was in such fear. She was spoken to 16 by DC Dean and agreed to give her evidence - and counsel refers to the 17 Memorandum ofDS Dean at Tab 2. 18

¶ [7] Leading counsel aTgues that the fact that Ms. Facey's evidence relating to the 19 alleged confession to her by the Defendant may be an issue in the proceedings and 20 that tile defence may seek to cast doubt upon her credibility, is not, it is respectfully 21 submitted, a matter that should be considered in determining this application for 22 special measures. 23 Ruling on the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. Quin J. Date: 17.11.14 Page 4 of 15 1 THE APPLICATION IN RELA TION TO CHET EBANKS 2

¶ [8] Leading counsel Mr. Russell Flint Q.C. highlights the fact that Chet Ebanks gave 3 statements on the 12th February 2008 and the 13th February 20008. He gave a 4 further statement on the 12th November 2014 stating that he is in fear for his life 5 because he has heard rumours "on the road" that "they" are going to get the 6 witnesses who are testifYing. He says he has been scared from the beginning of the 7 investigation since 2008. 8 Leading counsel points out that no statement was received from him in the matter 9 of R v. Chad Anglin, at which time he gave evidence without a screen. At that time 10 Chet Ebanks said that he had not heard the rumours. 11

¶ [9] Leading counsel points to the latest statement of Chet Ebanks dated the 14th 12 November 2014 in which he states that when he first gave evidence in the case of 13 the Frederic Bise murder there were no threats made prior to that case. However, 14 since the first trial, Chet Ebanks has advised that he has been hearing of threats 15 which have made him fear for his life and he thinks he could end up being killed in 16 the same way that Frederic Bise was killed. 17

¶ [10] Although Chet Ebanks does not know the Defendant, Leonard Antonio Ebanks 18 personally, he does not wish to face him without the presence of a screen. 19 20 21 22 Ruling on the Crown '8 Special Measures Application. Ind. No. 75/13, R v. LeonardAnlonio Ebanks. QuinJ. Date: 17.11.14 Page 5 of 15 1 II. In conclusion, leading counsel submits that the Court should properly conclude that 2 the quality of the evidence of each of these witnesses is likely to be diminished by 3 reason of the witnesses' fear or distress in testifying against this Defendant. The 4 Crown further submits that the Court must have regard to the fact that both 5 witnesses m'e to give substantial and important evidence in a murder trial where the 6 deceased has snstained brutal injuries to canse his death, and was then hnrned in his 7 own car at his own home. The nature and circumstances of the offence to which the 8 proceedings relate are thus of the utmost seriousness and gravity. 9 10 11 12 13 14 15 16 17 18 19 20 Ruling on the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. QUin J. Date: 17.11.14 Page 6 0[15 1 DEFENCE SUBMISSIONS 2

¶ [12] Leading counsel Mr. Courtenay Griffiths Q.C. on behalf of the Defendant submits 3 that the sole evidence against the Defendant are the alleged confessions made by 4 Ms. Facey and Arlene White. Leading counsel points out that their evidence forms 5 the sole and decisive evidence against the accused. Furthermore, Mr. Griffiths Q.C. 6 submits that there is no forensic or other independent evidence to support the 7 allegations made by these two witnesses. 8

¶ [13] Leading counsel submits that the overriding test is whether "the quality of the 9 evidence given by the witness is likely to be diminished by reason offear or distress 10 on the part of the witness in connection with testifying in the proceedings" and, in 11 applying that test the court is enjoined to take into account "in particular" the 12 matters set out in sub-sections (2)(a) to 9d), but that, necessarily, does not preclude 13 the court from bearing in mind other factors. Thus, Mr. Griffiths Q.C. argues that 14 the the submission made at paragraphs 13 and 14 of the Prosecution's skeleton 15 argument have no merit whatsoever. 16

¶ [14] The defence submits that the Court must be "satisfied" that this is indeed the case 17 before this application can be granted. This implies that the applicable standard of 18 proof is the normal criminal standard and that submission is based on (a) the fact 19 that this is an application made by the prosecution, in criminal proceedings, they 20 bear the burden of proof and (b) the very use of the word "satisfied." 21 22 23 Rulingon the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. Quin J. Date: 17.11.14 Page 7 of 15 1 DEFENCE SUBMISSIONS RELATING TO JULIET FACEY 2 IS. Defence counsel's submission is that Juliet Facey is one of the two witnesses upon 3 which the case for the Prosecution is founded and her evidence will be challenged 4 in toto and therefore her credibility is the central issue joined between her and the 5 Defendant. 6

¶ [16] Mr. Griffiths Q.C., then goes on to highlight that Ms. Facey had an on/off 7 relationship with the Defendant for several years. She first gave a statement to the 8 police on the 25th April 2008 outlining a version of the confession she supposedly 9 received from the Defendant. Thereafter she provided further statements to the 10 police. The Defence states that as far as they know Ms. Facey remained living in 11 the West Bay commnnity ever since that date, which is a period of some six (6) 12 years, and there is no suggestion that any attempt has been made by the Defendant 13 or his family or associates to interfere with either Ms. Facey or her family, such as 14 to engage subsection 41(B)(2)(b). 15

¶ [17] Accordingly, Leading counsel for the defence submits that the application for 16 special measures in respect of Ms. Facey is fonnded solely on sub-section 41(B)(3). 17 This is confirmed by the statement she has made in respect of this application. Tn 18 that statement she acknowledges that she has given evidence regarding these 19 matters on a previous occasion without the nse of screens and, in consequence, it 20 must be assumed that subsection 4 I (B)(2)(a) is not engaged. Further, that statement 21 makes no suggestion that any of tlle matters outlined in subsection 41 (b )(2)( c) are 22 applicable. Leading counsel submits further that, therefore, the basis of the 23 application is that: Ruling on the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard A~t~nio Ebanks. Quin J. Date: 17.11.14 Page 8 of 15 1 "[The Defendant] now does not like me and I am very scared of him. Although 2 he has not threatened me in any way, I am very nervous and scared regarding 3 giving evidence in his presence ... if I see him in Court and more importantly, if 4 he sees me, it will have a terrible effect on how I give my evidence. I am also 5 sure that numerous friends and family of Tonia will be present so that is making 6 me feel even worse." 7

¶ [18] Mr. Griffiths Q.C. submits that it is important to set those assertions against the 8 known facts regarding the nature of the relationship between the witness and the 9 Defendant and adds that there is material available to the court, which gives a 10 flavour of this and of the witness's true character (reference unused documents 11 291). 12

¶ [19] In relation to Ms. Facey, defence counsel presents in summary that this is a witness: 13 i. Who does not fall in the category of a vulnerable witness; 14 ii. Who is a mature woman with previous criminal convictions; 15 iii. Who knows the Defendant and has known him for several years; 16 IV. Who, despite her allegations against him has continued to maintain contact with 17 him even after she first made her allegations against him; 18 v. Relating to whom there is no credible evidence to suggest that any threat has 19 been made to either her or her family, either from the Defendant or anyone 20 associated with him; Ruling on the Crown's Special Measures Application. Ind. No. 75/13, R v. Leonard Antonio Ebanks. QUin J. Date: 17.11.14 Page 9 of 15 1 VI. About whom, despite the volatility of their relationship as evidenced by the 2 various contacts with the police, there is no evidence of any physical attempt to 3 intimidate or interfere with; 4 vii. Whose evidence deals with a narrow and discrete area of evidence, i.e. what she 5 was told by the Defendant. This evidence cannot be diminished by the passage 6 of time or by the length of the period over which the event occurred. It is rather 7 compressed into a short and easily recollected event; 8

¶ [20] Leading counsel contends that Ms. Facey continues to live in West Bay and there is 9 no direct evidence of threats made against Juliet Facey. 10

¶ [21] Mr. Griffiths Q.C. went through the history of "disturbances" surrounding Ms. 11 Facey, which, the Defence contends, shows that she is quite capable of handling 12 threats made to her/against her and, furtherruore, of threatening violence herself. In 13 otber words, the Defence submits tbat Ms. Facey is a robust character who is 14 perfectly capable of holding her own in any arena. Consequently the Defence 15 submits that there is no requirement to provide her with a screen as she is not a 16 vulnerable witness. 17

¶ [22] Defence counsel submits tbat nervousness and fear accompany any venture into the 18 courtroom by a witness. Unfamiliarity, shyness and nervousness are the natural and 19 inevitable companions of appearing in the public arena. Counsel states that it is in 20 the process of dealing with those passing feelings and emotions that the truth is 21 found. ~-~~-C-.' "'~~~~~~.-~-~ Ruling on the Crown '8 Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ebanks. Quin J. Date: 17.] 1.14 Page 10 of 15 1

¶ [23] The Defence therefore submits that the Crown's application ought not to be allowed 2 and that the Defendant's right at common law to conti'ont his accuser should, in the 3 circumstances, be upheld. 4 5 DEFENCE SUBMISSIONS IN RELATION TO CHET EBANKS 6

¶ [24] Leading counsel Mr. Griffiths Q.C. submits that this witness does not give any 7 controversial evidence and the Defence does not challenge his evidence. Rather, 8 counsel submits, the Defence seeks to emphasise certain aspects of Chet Ebanks' 9 account. The Defence also seeks clarification of some of the features of his 10 evidence. Defence counsel states that the importance of his evidence is that he was 11 involved in a longstanding, casual sexual relationship with the deceased, which is 12 the Crown's case. 13

¶ [25] Leading counsel submits that there is no direct evidence of any threats made against 14 Chet Ebanks and, furthermore, the Defence will not be prying into his sexual 15 history. 16

¶ [26] Leading counsel submits that there is no evidence to suggest that the Defendant 17 knows the witness, and the Defendant does not assert that he knows Chet Ebanks. 18 However, sight of the witness may well assist the Defendant in the development of 19 his defence. Leading counsel therefore submits that not permitting the Defendant to 20 see the witness may well hinder the proper presentation of the Defence case. 21

¶ [27] Accordingly, the Defence submits that the application in respect of Chet Ebanks 22 should also be refused. Ruling on the Crown '8 Special Measures Application. Ind. No. 75113. R v. Leonard Antonio Ebanks. Quin J. Date: 17.11.14 Page 11 0/15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶ [29] ANALYSIS AND CONCLUSION Section 17 of the Youth Justice aud Crimiual Evideuce Act 1999 in England and Wales sets out the criteria for eligibility of witnesses seeking assistance on the grmmds of fear or distress about testifYing. This section is in the same terms as s.4I(B) of the Evidence Law (2011 Revision) of the Cayman Islands. Section 17 in England and s. 41(B) in the Cayman Islands apply to both witnesses for the Crown and witnesses for the Defence. Both Leading Counsel for the Crown and the Defence have set out a list of matters which the Court should take into account, which is not an exhaustive list. At paragraph 8.75 of the 2104 Edition of Arch hold Criminal Pleading, Evidence & Practice, the learned editors refer to the English Comi of Appeal decision of R v. Brown!. The English Court of Appeal held that: "(1) Whilst s.17(2) (and (41 (B)(2) in our Evidence Law) oblige the Judge to have regard to various matters for the purpose of determining whether a witness was "eligible for assistance" within subsection (1) on the ground that the quality of the witness' evidence was likely to be diminished by reason of fear or distress, it was open to the Judge so to conclude by reference to paragraph (a) alone, that he could do so, notwithstanding that the witness was neither young nor particularly vulnerable; and (2) Where several witnesses to an alleged offence were eligible for special measures, the fact that another witness was not, could not possibly be a reason for saying that the Judge should not make a special direction in the case of any of the witnesses." Accordingly, although I must consider all the factors set out in 41(B)(2)(a), (b), (c) and (d), together with 41(B)(3), I can make the decision solely on s.4I(B)(2)(a)- the nature of the alleged circumstances of the offence to which the P~~!~~~:~s relate. 1 [2004] EWCA Crim. 1034 Ruling on the Crown's Special Measures Application. Ind. No. 75/13. Rv. LeonardAntonio Ebanks. Quin J Date: 17.11.14 Page 12 0[15 1

¶ [30] In relation to Ms. Facey I note that she did not apply for a screen in the case of R v. 2 Chad Anglin, however, in that case, she was not required to give any evidence that 3 was detrimental to the Defendant, and, in fact, I understand that no questions were 4 asked of her in cross examination. Furthermore, since the Chad Anglin trial, supra, 5 the Defendant has become aware that Ms. Facey has given statements against him 6 in these proceedings, and he has described her as "avery evil, spiteful, bad-minded 7 woman", 8

¶ [31] In relation to Chet Ebanks it is accepted that he gave evidence in the Chad Anglin 9 trial without asking for a screen. In a statement dated the 12th November 2014 given 10 by Chet Ebanks he states that "1 have been scared from the beginning of this 11 investigation since 2008". Also in an earlier statement dated the 13th February 12 2008, he said he "feels sad and scared due to the death of his friend" - Mr. Frederic 13 Bise. 14 In a statement dated the 12'h November 2014 Mr. Chet Ebanks says that he wishes 15 to state that he is "in fear of his life" and that he "has heard rumours on the road 16 that persons are saying they are going to get the witnesses who are testifYing". On 17 the 14th November 2014 Chet Ebanks clarifies that when he first gave evidence in 18 the Chad Anglin trial there were no threats made. It was only giving evidence in 19 that trial that he has heard about the threats and, hence, he fears for his life. He 20 states "1 wish to have a screen put up when giving evidence. 1 do not wish to face 21 this accused person." 22 Ruling on the Crown's Special Measures Application. Ind. No. 75113. R v. Leonard Antonio Ebanks. Quin J. Date: 17.1/.14 Page 13 of 15 1

¶ [32] Both witnesses live in a very small community where it is virtually impossible to 2 remain anonymous. This is another factor that the Court is obliged to consider and 3 take into account. 4

¶ [33] Furthermore, under s.41(B)(3) the Court "shall" m addition consider any views 5 expressed by the witnesses. 6

¶ [34] It is clear from their respective statements that these two witnesses are in fear and 7 distress about the prospect of testitying without a screen. Ms. Juliet Facey has 8 expressed her fear and distress regarding the prospect of giving evidence in her 9 statement dated the 6th November 2014. This is corroborated by the Memorandum 10 from DS Peter Dean - which informs that Ms. Facey has a perceived threat of 11 violence from associates of the accused man. 12

¶ [35] This trial concerns the most serious crime on the statute books. It is accepted by 13 both the Crown and the defence that the deceased was murdered in a most brutal 14 way by being bludgeoned to death. The evidence is that the deceased was then 15 placed in the boot of his car and the car set alight. T find that the nature and 16 circumstances of this murder are of the utmost seriousness and gravity. 17

¶ [36] Regardless of the fact that the Defence contends that Ms. Facey is a mature woman 18 who is known to the Defendant for several years, her statement, together with DS 19 Dean's memorandum, satisty me beyond all reasonable doubt that she is in fear. I 20 fmd that the fear and distress -caused by the prospect of giving evidence without a 21 screen - is likely to diminish the quality of the evidence that she can give. 22 Ruling on the Crown's Special Measures Application. fnd. No. 75/13. R v. LeonardAntonio Ebanks. Quin J. Date: 17.1/.14 Page 14 0/15 1

¶ [37] In addition, I find from my review of his statements that Chet Ebanks is also in 2 genuine fear and distress at the prospect of giving evidence. in relation to the murder 3 of his friend Frederic Bise. I am therefore satisfied beyond all reasonable doubt that 4 the quality of his evidence is likely to be diminished by reason of fear and or 5 distress in connection with testifying in these proceedings. 6

¶ [38] I am satisfied that, light of the very serious nature and grave circumstances of this 7 charge and the stated views of Ms. Facey and Chet Ebanks, that this is a case where 8 they both should be granted the assistance of the screen. 9

¶ [39] Furthermore, I find the provision of the special measure of a screen will not prevent 10 the Defendant from having a fair trial. The Defendant has a very experienced and 11 senior Queens Counsel leading his Defence team along with an experienced junior 12 counsel who will both be able to see Ms. Facey and Chet Ebanks and observe their 13 demeanour as they give their evidence and, therefore, the cross examination of Ms. 14 Facey and Chet Ebanks will therefore not be hampered or impaired. I therefore find 15 that the Defendant will be able to have a fair trial. 16

¶ [40] Accordingly, and for the above reasons, I accede to the Crown's application for 17 special measures under sAl(B) and 41(H) of the Evidence Law. 18 Dated this the 17th day of November 2014 19 20 Honourable Mr. Justice Charles Quin Q.C. 21 Judge of the Grand Conrt Ruhng on the Crown's Special Measures Application. Ind. No. 75/13. R v. Leonard Antonio Ehanks. Quin J, Date: 17.11.14 Page 15 0/15